Public procurement regulation in Spain

October 2018

• European Union Official Journal.
• Official Spain’s Official State Gazette (Boletín Oficial del Estado).
• Public Sector Contracting Platform (Plataforma de Contratación del Sector Público):
• Official Journal of each of the 17 Autonomous Communities and a number of local entities.
• Spanish contracting authorities and contracting entities also publish tender notices on their respective websites.

All onerous contracts – whatever their legal nature – concluded by public sector entities are subject to the LCSP.

The LCSP defines certain thresholds to define those contracts subject to harmonized regulation:

• Works contracts, works concession contracts and service concession contracts whose estimated value, net of VAT, equals or exceeds EUR 5,225,000.
• Supply contracts whose estimated value, net of VAT, equals or exceeds (i) EUR 144,000 when they are concluded by Central Government Authorities; (ii) EUR 221,000 in the case of other supply contracts.
• Service contracts whose estimated value, net of VAT, equals or exceeds (i) EUR 144,000 when they are concluded by Central Government Authorities; (ii) EUR 221,000 in the case of other service contracts; (iii) EUR 750,000 in the case of service contracts for social and other specific services (Annex IV).

The LCSP also provides thresholds for minor contracts with an estimated value of less than EUR 40,000 for works contracts and less than EUR 15,000 in the case of supply or service contracts. The LSCP establishes a simplified procedure for awarding minor contracts.

The LCSP regulates five award procedures: (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue and (v) association procedure for innovation.

• Contracting authorities may apply open or restricted procedures, except to concession contracts for specific services, which must be awarded by restricted procedure (art. 131.2 LCSP).
• Contracting authorities may apply a negotiated procedure with prior publication to works contracts, supply contracts, services contracts, works concession contracts and service concession contracts in the following situations (art. 167 LCSP):
  • Where the performance of the contract requires previous work or a previous design to be adapted by tenderers;
  • Where the performance of the contract includes a project or innovative solutions;
  • Where the contract cannot be awarded without prior negotiation because of specific circumstances related to the nature, the complexity, or the legal and financial make-up of the contract or because of the risks attached to it;
  • Where the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European technical assessment, common technical specification or technical reference;
  • Where all tenders submitted in response to an open or a restricted procedure were irregular or unacceptable;
  • In the case of personal social services contracts under the terms established in the LSCP.
• The negotiated procedure without prior publication may be used for works contracts, supply contracts, services contracts, works concession contracts and service concession contracts only in the following cases (art. 168 LCSP):
  • Where no (suitable) tenders or no (suitable) requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the remuneration system cannot be modified, the initial conditions of the contract are not substantially altered and that a report is sent to the European Commission when requested;
  • Where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons: (i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance not belonging to the Spanish Historical Heritage; (ii) competition is absent for technical reasons; or (iii) the protection of exclusive rights, including intellectual and industrial property rights;
  • Where the contract has been declared secret or reserved, or where its execution must be accompanied by special safety measures, or where the protection of national essential security interests is involved.
  • Where urgent and compelling reasons due to unforeseeable events, non-attributable to the contracting authority, demand a prompt execution of the contract that cannot be accomplished by the urgency procedure;
  • Where no (suitable) tenders or no (suitable) requests to participate have been submitted in response to an open procedure or a restricted procedure.
• The negotiated procedure without prior publication may also be used for supply contracts in the following cases (art. 168 LCSP):
  • Where the products involved are manufactured purely for research, experimentation, study or development;
  • For additional deliveries by the original supplier under the terms established in the LCSP;
  • For supplies quoted and purchased on a commodity market;
  • For the purchase of supplies or services on particularly advantageous terms, from either a supplier that is definitively winding up its business activities, the liquidator in an insolvency procedure, a judicial arrangement or similar.
• The negotiated procedure without prior publication may also be used for: (i) service contracts that follow a design contest and are awarded to the winner under the contest rules; and for (ii) works contracts, in which the task comprises repetition of similar works assigned to the contractor (art. 168 LCSP).
• Competitive dialogue can be used in the cases listed in art. 167 LCSP referred to above (art. 172.3 LCSP).
• Association procedure for innovation seeks to promote the most innovative companies and can be used where the objective of the contract is the development of innovative products, services or works and the further purchase of the resulting supplies, services and works. The need for innovative supplies, service or works that cannot be satisfied by those already on the market must be justified by contracting authorities (art. 177 LSCP).

Special appeal on contracting may be filed against the following contracting authority decisions (art. 44 LCSP):

• Procurement notices, contract specifications and documents establishing conditions governing the contracting procedure;
• Procedural acts/decisions adopted during the contracting procedure, provided that these directly or indirectly decide the award, determine the impossibility of continuing the procedure or cause irreparable defenselessness or damage to legitimate rights or interests. For instance, a decision that rejects a tender;
• Contract award decisions adopted by contracting authorities;
• Modifications of contracts breaking the LCSP;
• Formalization of orders to own means when these do not meet the legal requirements; and
• Concession rescue decisions.

The cases mentioned in which the special appeal on contracting applies include:

• Works contracts whose estimated value exceeds EUR 3,000,000;
• Supply and services contracts whose estimated value exceeds EUR 100,000;
• Framework agreements whose object is to conclude a previous contract; and
• Works concession contracts and service concession contracts whose estimated value exceeds EUR 3,000,000.

This special appeal on contracting procedure cannot be filed in relation to awarding procedures carried out following an emergency procedure.

Any other decisions adopted in a procurement procedure, when the contracting authority is a Public Administration, may be challenged by ordinary administrative appeals.

All decisions may be challenged before national courts after, where appropriate, an administrative appeal.

In general, the special appeal on contracting must be filed within 15 working days following the notification of the appealed decision. This appeal is optional.

The period is calculated according to the following rules:

• When the special appeal is filed against the content of the tender documents, the calculation starts on the day after the procurement notice is published on the Contracting Authority Profile;
• In the case of a negotiated procedure without prior publication, the calculation starts on the day after the invitation to selected candidates is sent;
• When a special appeal is filed against procedural acts, or against a decision taken in a negotiated procedure without publication, the time limit calculation starts on the day after the appellant becomes aware of such a decision/act;
• When a special appeal is filed against a contract award notice, the time limit calculation starts on the day after the notice is published;
• When a special appeal is filed against a contract modification based on a breach of the LCSP, the calculation starts the day after the modification is published on the Contracting Authority Profile;
• When a special appeal is filed against an order to own means, the calculation starts on the day after it is published on the Contracting Authority Profile; and
• In all other cases, the calculation starts on the day after notice of the decision has been published.

When the special appeal is not filed, the time limit for judicial appeal is of two months. However, it must be noted that special rules apply in certain specific cases.

The standstill period applies only when the special appeal on contracting is applicable. In these cases, the contract cannot be formalized within a period of 15 working days from the date on which the award notice is submitted to bidders and selected tenders, according to art. 153.3 LCSP.

• Special appeal on contracting:
  • State level: a specialized public procurement body: the Central Administrative Court on Procurement Appeals (Tribunal Administrativo Central de Recursos Contractuales).
  • Autonomous Region level: a specific public procurement body for every autonomous region.
  • Local level: the autonomous region in which the specific local corporation is located may establish the competent authority. If this is not the case, the autonomous region public procurement body is competent.
• Ordinary administrative appeal: the competent review body depends on the internal organizational rules of each Public Administration.
• Judicial appeals before courts: if the contracting authority is considered a Public Administration, a contentious-administrative appeal can be filed. The competent court will depend on the public nature of such Public Administration.

• No fees can be charged for administrative appeals filed under the LCSP (art. 44.7 LCSP) nor for ordinary appeals.
• Regarding judicial appeals, filing fees shall apply in some cases.

• Filing a special appeal on contracting, when challenging an awarding decision, has a suspensive effect in relation to the tender procedure, except in the case of contracts based on a framework agreement or specific contracts to be awarded under a dynamic purchasing system, without prejudice of preventive measures that may be adopted with regard to these last-named (art. 53 LCSP).
• In any other case, if the challenged decision or resolution does not concern the award of the contract, and in case of an ordinary administrative appeal or a judicial appeal, it is necessary to apply for interim measures.

• If a preparatory act of a contract, or the awarding of the contract is declared to be null by means of a definitive and final decision, the nullity will invalidate the contract itself, according to art. 42 LCSP. The contract will enter into a settlement stage, in which each party must return every benefit received by virtue of it.
• The annulment of acts that are not preparatory will only affect them and their consequences.
• If the cancellation of a contract could seriously affect the public service, it may be decided that the provisions of the contract can continue to apply on the same terms after its cancellation until urgent measures have been taken to avoid damaging the public interest.

Amendments to procurement contracts that have already been awarded may only be made in the following cases (art. 203 LCSP):

• When it is established in the initial tender documents;
• Exceptionally, when an amendment is required but it is not provided in the initial tender documents, under the terms established in the LCSP.

In all other cases, if it is necessary that a contract in force is executed in a way other than that agreed, the contract must be dissolved and a new contract concluded.

E-procurement has been mandatory in Spain since 9 March 2018.

All notifications and communications related to contract award procedures regulated by the LCSP must be made by electronic means.

Regarding e-signatures, the LCSP provides that contracting authorities must specify the required security level for the electronic means used at each stage of the procurement procedure. It should be proportional to the risk associated with the exchange of information to be made. Therefore, the type of e-signature will depend on the circumstances of each case.